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New Marijuana 'Decriminalization Bill' Leaves Room for Police Bias

The Nashville ordinance doesn't actually decriminalize weed possession—it lets the police decide who to arrest.
Photo by Leander Nardin via Stocksy

On Tuesday, Nashville became the first city in Tennessee to pass an ordinance that would allow people who are found with small amounts of cannabis to avoid jail time and a criminal record. Mayor Megan Barry is expected to sign the legislation into law and has called the bill is a victory for criminal justice. "This legislation is a positive step forward in addressing the overly punitive treatment of marijuana possession in our state that disproportionately impacts low-income and minority residents," she said in a statement.


Indeed, this is a step in the right direction: According to a 2009 report, Tennessee ranked 11th in the nation for marijuana arrests per capita in 2007, and state law currently mandates up to one year in prison and a $2,500 fine for carrying up to one ounce of marijuana, which is considered a misdemeanor. However, the new ordinance doesn't exactly decriminalize weed for all Nashville residents—the measure only gives cops the option to assign lesser punishments to marijuana possession; it doesn't mandate them.

Read more: Moms Are the Unexpected Voice of Medical Marijuana Advocacy

Councilman Dave Rosenberg, who sponsored the bill, considers it a "local parallel ordinance" to state law. "It doesn't supersede state law," he told Broadly. "This is giving police officers an additional tool for enforcement. Officers have the discretion to either issue a civil citation or enforce the state statue when they're enforcing the law."

Said differently, the law has the potential to arbitrarily criminalize some people for marijuana possession and not others. In its original form, the bill stated that violators "shall" be issued a citation and fined $50 if caught with up to half an ounce of weed, but the Metro Nashville Police Department strongly objected to it. In its final form, the language was changed to give police the ability to issue a fine or make an arrest, depending on the circumstance. Once that change was made, Police Chief Steve Anderson announced in a memo to council members, "Consequently, I feel comfortable in moving my position to neutral, neither opposing or advocating passage." Anderson did not return Broadly's request for comment in time for publication.


Rosenberg said he welcomed the edit to the bill. "After filing the legislation, I had a concern, which was a little bit different than [the police department's], with the 'shall' language," he explained. "I was concerned that regardless of the language of the bill [the police] would be able to enforce the state law, and then, on top of the criminal state law penalties, the officers would be required to issue a citation, and it would just make things worse."

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Still, the passage of a bill that facilitates police discretion when it comes to punishing marijuana offenses seems like it would create its own problems. How the law functions is now up to the police, which isn't always a good thing.

"In other cities where this has been done, the police department issues guidelines about when it would be appropriate to [make an arrest or issue a citation]," Rosenberg explained. Miami passed a similar city ordinance in 2015 and it appears to have worked out. The police set guidelines that stipulated people in possession of a small amount of marijuana would receive a citation unless they were using the drug in public or while driving a car. But when Tampa passed a bill in August that gives police the option of not arresting people for weed possession, the cops simply refused to acknowledge it.

Short of the latter, the vague law could lead to racial bias, which starts with the likelihood of getting arrested. "There are racial disparities at each stage of the process. It snowballs as someone goes through the system," Nazgol Ghandnoosh, a research analyst at the Sentencing Project, told me for a previous article. It's troubling that a bill said to address the disproportionate impact of marijuana laws on minorities could possibly advance it.

Rosenberg, however, doesn't see it as an issue and has a lot more faith in the police than most people do right now. "We have a fantastic police chief, and a great department, and I'm sure that he will handle this in the correct way." (When I asked him if the police department has started discussing those guidelines he said, "No. Not that I'm aware of.")

"Our police go through a lot of training to make sure they're aware of their bias and to address those biases," he added. "My sense is that they'll be even-handed with this, but we'll certainly keep an eye on the numbers."